Citation NR: 9626442
Decision Date: 09/16/96 Archive Date: 09/26/96
DOCKET NO. 93-21 865 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased (compensable) evaluation for the
postoperative residuals of an exploratory laparotomy and
lysis of adhesion due to postoperative umbilicus removal, to
include a scar.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, appellant’s spouse
ATTORNEY FOR THE BOARD
Michelle E. Jensen, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a February 1992 rating decision by
the Department of Veterans Affairs (VA) Regional Office in
Buffalo, New York (RO), which denied the benefit sought on
appeal. The veteran, who had active service from May 1943 to
February 1946 and March 1949 to December 1951, appealed that
decision to the BVA, and the case was referred to the Board
for further review.
The Board notes that an August 1995 BVA determination
remanded this case to the RO for further development, to
include a VA examination and the gathering of recent
treatment records. Following the completion of this
development, the RO returned the case to the Board for
further appellate review.
In addition, the Board notes that the veteran has raised the
issue of entitlement to compensation under 38 U.S.C.A. § 1151
for urinary and erectile dysfunction as the result of surgery
performed. This issue, however, is not currently developed
or certified for appellate review. Accordingly, it is
referred to the RO for appropriate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO was incorrect in not
granting the benefit sought on appeal. The veteran
maintains, in substance, that he experiences abdominal pain
and discomfort that significantly restrict his activities.
He contends that this is attributable to his service-
connected abdominal condition, rather than his history of a
duodenal ulcer. The veteran maintains that the evidence
supports his claim. Therefore, a favorable determination has
been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against the claim for
entitlement to an increased evaluation for the postoperative
residuals of an exploratory laparotomy and lysis of adhesion
due to postoperative umbilicus removal, to include a scar.
FINDING OF FACT
Any postoperative residuals of an exploratory laparotomy and
lysis of adhesion due to postoperative umbilicus removal, to
include a scar, are no more than mild.
CONCLUSION OF LAW
The criteria for a compensable evaluation for the
postoperative residuals of an exploratory laparotomy and
lysis of adhesion due to postoperative umbilicus removal, to
include a scar, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. § 4.114, 4.118, Diagnostic Codes
7301, 7805 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board finds that the veteran’s claim is well grounded
within the meaning of 38 U.S.C.A. § 5107 (a) (1991); Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski,
1 Vet. App. 49, 55 (1990). That is, the Board finds that the
veteran has presented a claim which is not implausible when
his contentions and the evidence of record are viewed in the
light most favorable to those claims. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed and that no further assistance to the
veteran is required in order to comply with the duty to
assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991).
A February 1992 rating decision granted service connection
for postoperative residuals of an exploratory laparotomy and
lysis of adhesion due to postoperative umbilicus removal, to
include a scar. This determination was based on the service
medical records which indicated that the veteran underwent
surgical revision to fascia with excision of the navel, and
VA inpatient and outpatient treatment records from 1991 which
indicated that the veteran underwent an August 1991
exploratory laparotomy and lysis of adhesion due to
postoperative umbilicus removal. The RO assigned a
noncompensable evaluation, noting that there was no
indication of pain or tenderness of a postoperative scar and
no indication of dysfunction of the bowel.
A review of the record indicates that in August 1991, the
veteran reported to a VA hospital with complaints of
abdominal pain, nausea, diarrhea and vomiting. Five days
after admission, the veteran underwent an exploratory
laparotomy. At this time, it was noted that the veteran had
one adhesion which was obstructing a loop of bowel. The
adhesion was lysed with no complications. The veteran was
diagnosed with a small bowel obstruction secondary to
adhesions and was discharged one week later. Approximately
one week after his discharge from the hospital, the veteran
returned to have his staples removed. The examiner indicated
that the veteran was “doing great” and had no complaints of
pain. It was noted that there was no evidence of erythema or
drainage.
A May 1992 VA examination indicated that the veteran
complained of occasional lower abdominal discomfort.
Physical examination indicated a well-healed
15-centimeter midline abdominal surgical scar with no pain or
tenderness on objective demonstration.
A June 1992 VA outpatient treatment record indicated that the
veteran complained of abdominal pain for two days prior to
this visit with 7-1/2 hours of severe mid-abdominal pain.
The veteran noted that he felt fine at the time of this
visit. The examiner found the veteran’s abdomen to be soft
and nontender. The veteran was diagnosed with status post
abdominal pain.
In a November 1992 hearing before the RO, the veteran
testified that most of the time he had a pain in his stomach.
The veteran noted that he had a duodenal ulcer and was unsure
as to whether the ulcer was the source of his stomach pain.
The veteran revealed that in June 1992 he had 7-1/2 hours of
abdominal pain and reported to a VA hospital. He was told to
come back if the pain returned. At this time, a VA physician
examined the veteran’s abdomen which, the veteran noted, was
tender. According to the veteran, this was the only time he
sought treatment for his stomach since his surgery in August
1991. The veteran stated that he was able to return to work
on a part-time basis as a barber approximately five weeks
after this surgery, although he was very weak.
The veteran testified that he often worried that his
adhesions would return because the doctor who operated on him
in August 1991 told him that the adhesions could come back
within six months to two years, or even longer. The veteran
reported that sometimes he needed to ask his wife to drive
for him. The veteran revealed that he wore a belt for back
pain which helped to keep in his stomach. The veteran
stated that he could not eat chocolate, coffee, alcohol, or
greasy food. The veteran testified that if he did eat such
things, he would get “whoosy” for a couple of days. In
addition, the veteran noted that he had occasional problems
with diarrhea and constipation. He related that he took
stool softeners for the constipation. According to the
veteran, he had pain on a daily basis and took Rolaids and
other antacids for this pain.
The veteran’s wife testified that when the veteran was
operated on during service, too much skin was removed in the
area of his belly button which caused adhesions.
She noted that every time the veteran had stomach pain, they
thought it was his ulcer, but it was probably the adhesions
growing until they finally covered up his large intestine.
She indicated that she had to watch what she cooked for the
veteran. In addition, the veteran’s wife testified that when
the veteran had exploratory surgery in August 1991, the
doctors felt that the veteran might die. She noted that the
doctors stated that the veteran could have a stroke and die,
might have to have a colostomy or that the doctors might find
cancer.
A March 1993 VA outpatient treatment record noted that the
veteran complained of “flashes.” At this time, it was noted
that the veteran’s abdomen was soft and nontender. A midline
umbilical scar was noted. The veteran had no complaints of
abdominal pain.
In a March 1993 statement, the veteran noted that he had
failed previously to mention that he often had to stop
barbering and rest for a few hours because of his stomach
pain. The veteran noted again that he went to the VA
hospital in June 1992 when his abdominal pain became very
severe.
A March 1996 VA scar examination indicated that the veteran
reported a history of umbilical infections which led to the
removal of his umbilicus. The veteran noted that he did well
postoperatively until two or three years prior to his visit.
At that time, the veteran noted, he developed pain
predominantly after eating and was diagnosed with a bowel
obstruction. Subsequently, the veteran underwent a
laparotomy for lysis of adhesions. The veteran noted a
history of a duodenal ulcer, but did not recall how this
diagnosis was obtained. The veteran complained of
intermittent pain which was dull in nature and lasted
approximately 15 to 20 minutes after eating. The veteran
noted that his bowel movements were normal with no evidence
of blood or diarrhea.
Physical examination indicated that the veteran had a well-
healed umbilical scar as well as a laparotomy scar. No
evidence of tenderness to palpation was indicated at this
level. The veteran’s abdomen was soft to palpation. He had
negative rebound tenderness and a mild fullness to his right
lower quadrant with mild tenderness to palpation. It was
noted that this area was remote to his scar. There was no
evidence of upper abdominal pain to palpation and the veteran
had positive bowel sounds.
The veteran was diagnosed with a well-healed laparotomy as
well as umbilical scars which were asymptomatic at the time
of examination and did not contribute to the veteran’s
complaints. It was noted that the veteran’s complaints were
more typical of an ulcer diagnosis, but further studies
should be done. The right lower quadrant fullness likely
represented bowel contents, but an appropriate workup by a
general surgeon was recommended.
During a March 1996 VA intestine examination, the veteran
reported that foods such as peppers and figs caused greater
right lower quadrant discomfort. The veteran noted that he
was bothered by intermittent diarrhea. Approximately once a
month, he had up to four stools per day. The veteran
indicated that he was told that he had a peptic ulcer many
years ago. He noted that he was not bothered by discomfort
in this area and took no medication related to the
discomfort. The examiner noted that although the veteran
indicated occasional heartburn, a diagnosis of peptic ulcer
did not appear significant at this time. In addition, a
gastric duodenal or margin ulcer did not appear to be a
viable diagnosis.
Upon physical examination, the veteran’s right mid-abdomen
revealed some tenderness with no obvious mass palpable.
Rectal examination revealed some brown hemoccult negative
stool. The veteran was diagnosed with pain and intermittent
diarrhea secondary to prior surgery related to small bowel
obstruction with likely adhesion band. The examiner noted
that no other significant pathology could be identified to
explain the veteran’s symptoms by this study.
A March 1996 request by the RO for clarifying tests and
studies indicated that the March 1996 scar and intestine
examinations presented opposing conclusions as to whether the
veteran had an ulcer and/or any intestinal obstruction. The
RO indicated that no effort was made at resolution.
In May 1996, a report of recently conducted upper GI and
barium enema studies indicated that there was no evidence of
active disease in the stomach or of any abnormality in the
esophagus, duodenum or the entire small bowel, including the
terminal ileum. The examiner noted that there was no mention
made of whether an adhesion band was seen causing a partial
obstruction of the bowel. Therefore, the assumption was that
there was no adhesion band. The barium enema was reported as
normal. The examiner indicated that the requested X-ray
studies did not support the diagnosis of active ulcer and did
not confirm any small bowel obstruction.
Disability evaluations are determined by comparing the
veteran’s current symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155.
Where entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. Francisco v.
Brown, 7 Vet.App. 55, 58 (1994).
The VA has the duty to acknowledge and consider all
regulations which are potentially applicable to the
assertions and issues raised in the record and to explain the
reasons and bases for its conclusions. Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). Each disability must be
reviewed in relation to its history and emphasis must be
placed upon the limitation of activity imposed by the
disabling condition. 38 C.F.R. § 4.1 (1995). Medical
reports must be interpreted in light of the whole recorded
history, and each disability must be considered from the
point of view of the veteran working or seeking work.
38 C.F.R. § 4.2 (1995).
The basis of a disability evaluation is the ability of the
body to function as a whole under the ordinary conditions of
daily life including employment. 38 C.F.R. § 4.10 (1995).
When after careful consideration of the evidence, a
reasonable doubt arises regarding the degree of disability
such doubt will be resolved in favor of the veteran.
38 C.F.R. § 4.3 (1995). Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
38 C.F.R. § 4.7 (1995).
When an unlisted condition is encountered it will be
permissible to rate under a closely related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
38 C.F.R. § 4.20 (1995).
Scars which are not poorly nourished with repeated
ulceration, or are not tender and painful on objective
demonstration will be rated on the limitation of function of
the part affected. 38 C.F.R. § 4.71a, Diagnostic Codes 7803,
7804, and 7805. Mild adhesions of the peritoneum are
noncompensable. Moderate adhesions with pulling pain on
attempting work or aggravated by movements of the body, or
occasional episodes of colic pain, nausea, constipation
(perhaps alternating with diarrhea) or abdominal distension,
warrant a 10 percent evaluation. Ratings for adhesions will
be considered when there is history of operative or other
traumatic or infectious (intraabdominal) process, and at
least two of the following: disturbance of motility, actual
partial obstruction, reflex disturbances, presence of pain.
38 C.F.R. § 4.114, Diagnostic Code 7301 (1995).
After a thorough review of the probative evidence, the Board
finds that any postoperative residuals of an exploratory
laparotomy and lysis of adhesion due to postoperative
umbilicus removal, to include a scar, are no more than mild.
The Board notes that the latest VA examination indicated that
upper gastrointestinal and barium enema studies did not show
an adhesion band causing an obstruction of the bowel, or any
pulling pain on attempting work or aggravated by movement of
the body. In addition, there is no medical evidence that the
scars from the umbilicus removal and subsequent laparotomy
are poorly nourished with repeated ulceration, or are tender
and painful on objective demonstration.
The Board notes the veteran’s complaints of abdominal pain
and occasional episodes of diarrhea, and finds the testimony
of the veteran and his wife to be credible. However, these
statements are insufficient to establish that the veteran’s
current abdominal discomfort is the result of the umbilicus
removal during surgery. See Espiritu v. Derwinski, 2
Vet.App. 492, 495 (1992). Without further medical evidence
of any functional limitation, the Board concludes that the
current noncompensable evaluation adequately reflects the
disability picture associated with the veteran’s
postoperative residuals of an exploratory laparotomy and
lysis of adhesion due to postoperative umbilicus removal, to
include a scar.
In reaching this decision, the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant’s claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Entitlement to a compensable evaluation for the postoperative
residuals of an exploratory laparotomy and lysis of adhesion
due to postoperative umbilicus removal, to include a scar, is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans’ Appeals
The Board of Veterans’ Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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